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2013 DIGILAW 366 (JHR)

Mintu Kashyap v. State of Jharkhand

2013-03-12

PRASHANT KUMAR

body2013
JUDGMENT PRASHANT KUMAR, J. 1. Initially petitioner filed present writ application on 30.04.2012 for issuance of a direction commanding respondent no.2 to 5 for not involving him under Jharkhand Control of Crimes Act, at the instance of respondent no.6. It is stated that respondent no.6 is Ward Commissioner and due to political rivalry she pressurised respondent no. 2 to 5 for implicating the petitioner under Jharkhand Control of Crimes Act. It appears that during pendency of main writ application an Interlocutory application, vide I.A. No. 834 of 2012,filed, wherein a prayer has been made for quashing of detention order dated 06.03.2012 as contained in memo no.672 passed by respondent no. 2. In the aforesaid I.A., petitioner prayed that further proceeding in the Court of C.J.M. Dhanbad be stayed. Another Interlocutory application bearing I.A. No. 726/2013 filed praying therein that entire proceeding in relation of C.O. Case no.26/2012 pending in the court of C.J.M. Dhanbad be quashed. 2. It is an admitted position that petitioner has not been arrested on the basis of impugned detention order. In the writ application, as well as in the I.A. petition, petitioner challenged the said order only on the ground that impugned order of detention was issued on the behest of respondent no. 6, who had political rivalry with the petitioner. 3. In the counter affidavit, it is stated that detention order was passed on 06.03.2012 and after knowing th same petitioner absconded, therefore, order of detention could not be executed. It is further stated that thereafter, as per provisions contained under Jharkhand Control of Crimes Act, a notice issued in the official gazette as well as in the daily newspaper directing the petitioner to surrender, but inspite of that petitioner did not appear and/or surrender. Accordingly, matter reported to the C.J.M., Dhanbad under section 16 of the Jharkhand Control of Crimes Act, 2002 for initiating a proceeding and punishing him as per provisions contained under section 16 of the Act. Accordingly, C.J.M. Dhanbad vide order dated 28.04.2012 took cognizance against the petitioner. 4. It is stated that petitioner is an absconder thus, order of detention could not be served upon him. However, order was affixed at a conspicuous place at the residence of petitioner in presence of his father and other persons of the locality. It is further stated that order of detention has been approved by the State Government. 4. It is stated that petitioner is an absconder thus, order of detention could not be served upon him. However, order was affixed at a conspicuous place at the residence of petitioner in presence of his father and other persons of the locality. It is further stated that order of detention has been approved by the State Government. Learned counsel appearing for the state submits that later on matter also placed before the Advisory Board constituted under Jharkhand Control of Crimes Act, 2002. Accordingly, it is submitted that as petitioner is absconding and the order of detention has not been executed, therefore, present writ application is liable to be dismissed as not maintainable. 5. It is submitted by learned counsel for the petitioner that impugned order of detention is bad because it has been passed on the behest of respondent no.6, who is a Ward Commissioner and has political rivalry with the petitioner. It is further submitted that from perusal of grounds attached with the detention order, it appears that nature of case cited against the petitioner relates to law and order and have no concern with public order. It is submitted that as per Section 12 of the Jharkhand Control of Crimes Act, 2002, petitioner can only be detained if it appears to the Detaining Authority that he is an anti-social element and will disturb public order of the locality. It is submitted that the Detaining Authority had taken into account only four cases and out of those four cases, two cases were lodged by respondent no.6 Nilu Sinha. It is further submitted that other two cases are lodged by men's of Nilu Sinha. Thus, from perusal of the grounds, it is clear that cases are in between the parties and no public order involved in it. Thus, section 12 of the Jharkhand Control of Crimes Act, 2002 has no application in this case. It is further submitted that impugned order has been passed on the basis of extraneous consideration. Accordingly, it is submitted that impugned order cannot be sustained. 6. On the other hand, Sri A.K.Mishra, learned counsel for the State of Jharkhand submitted that in view of law laid down by their Lordships of Supreme Court in Additional Secretary to the Government of India & others. Vs. Accordingly, it is submitted that impugned order cannot be sustained. 6. On the other hand, Sri A.K.Mishra, learned counsel for the State of Jharkhand submitted that in view of law laid down by their Lordships of Supreme Court in Additional Secretary to the Government of India & others. Vs. Smt. Alka Subhash Gadia and another reported in 1992 Suppl.(1) SCC-496, an order of detention can be challenged at its pre-execution stage, if the Court satisfies that:- (i) Impugned order is not passed under the Act under which it is purported to have been passed. (ii) That it sought to be executed against a wrong person. (iii) That it is passed for a wrong purpose. (iv) That it is passed on vague, extraneous and irrelevant grounds or (v) That the authority who passed it had no authority to do so. 7. It is submitted that none of the aforesaid grounds are available to the petitioner in the instant case. Thus, the present writ application is liable to be dismissed, as not maintainable. 8. It is submitted that petitioner ought to have surrendered in pursuance of various notices issued in the official gazette, as well as in the newspaper and, thereafter, ought to have filed a representation for its consideration by the Advisory Board. It is submitted that when an alternative remedy available to the petitioner then writ application is not maintainable. Accordingly, it is submitted that present writ application is liable to be dismissed. 9. Sri Kaushik Sarkhel, learned counsel appearing for respondent no.6 has submitted that petitioner is an anti-social element and he is terror in the society. Thus, impugned order has been rightly issued against him. 10. Having heard the submissions, I have gone through the records of the case. 11. As noticed above, in the instant case, petitioner is still not arrested and/or detained in terms of order dated 06.03.2012 passed by respondent no.2 under section 12(2) of the Jharkhand Control of Crimes Act,2002. Thus, question arose as to whether it is open for the petitioner to challenge the detention order prior to its execution? 12. Judgment of the Hon'ble Supreme Court in Additional Secretary to the Government of India & others (Supra) is complete answer to the said question. It is appropriate to quote paragraph no.30 of the aforesaid judgment in this regard. Thus, question arose as to whether it is open for the petitioner to challenge the detention order prior to its execution? 12. Judgment of the Hon'ble Supreme Court in Additional Secretary to the Government of India & others (Supra) is complete answer to the said question. It is appropriate to quote paragraph no.30 of the aforesaid judgment in this regard. "As regards his last contention, viz., that to deny a right to the proposed detenu to challenge the order of detention and the grounds on which it is made before he is taken in custody is to deny him the remedy of judicial review of the impugned order which right is a part of the basic structure of the Constitution, we find that this argument is also not well merited based as it is on absolute assumptions. Firstly, as pointed out by the authorities discussed above, there is a difference between the existence of power and its exercise. Neither the Constitution including the provisions of Article 22 thereof nor the Act in question places any restriction on the powers of the High Court and this Court to review judicially the order of detention. The powers under Articles 226 and 32 are wide, and are untrammelled by any external restrictions, and can reach any executive order resulting in civil or criminal consequences. However, the courts have over the years evolved certain self-restraints for exercising these powers. They have done so in the interests of the administration of justice and for better and more efficient and informed exercise of the said powers. These self-imposed restraints are not confined to the review of the orders passed under detention law only. They extend to the orders passed and decisions made under all laws. It is in pursuance of this self-evolved judicial policy and in conformity with the self-imposed internal restrictions that the courts insist that the aggrieved person first allow the due operation and implementation of the concerned law and exhaust the remedies provided by it before approaching the High Court and this Court to invoke their discretionary extraordinary and equitable jurisdiction under Articles 226 and 32 respectively. That jurisdiction by its very nature is to be used sparingly and in circumstances where no other efficacious remedy is available. That jurisdiction by its very nature is to be used sparingly and in circumstances where no other efficacious remedy is available. We have while discussing the relevant authorities earlier dealt in detail with the circumstances under which these extraordinary powers are used and are declined to be used by the courts. To accept Shri Jain's present contention would mean that the courts should disregard all these time-honoured and well-tested judicial self-restraints and norms and exercise their said powers, in every case before the detention order is executed. Secondly, as has been rightly pointed out by Shri Sibal for the appellants, as far as detention orders are concerned if in every case a detenu is permitted to challenge and seek the stay of operation of the order before it is executed, the very purpose of the order and of the law under which it is made will be frustrated since such orders are in operation only for a limited period. Thirdly, and this is more important, it is not correct to say that the courts have no power to entertain grievances against any detention order prior to its execution. The courts have the necessary power and they have used it in proper cases as has been pointed out above, although such cases have been few and the grounds on which the courts have interfered with them at the pre-execution stage are necessarily very limited in scope and number, viz., where the courts are prima facie satisfied:- (i) That the impugned order is not passed under the Act under which it is purported to have been passed. (ii) That it is sought to be executed against a wrong person. (iii) That it is passed for a wrong purpose (iv) That it is passed on vague, extraneous and irrelevant grounds or (v) That the authority which passed it had no authority to do so. The refusal by the courts to use their extraordinary powers of judicial review to interfere with the detention orders prior to their execution on any other ground does not amount to the abandonment of the said power or to their denial to the proposed detenu, but prevents their abuse and the perversion of the law in question. 13. The refusal by the courts to use their extraordinary powers of judicial review to interfere with the detention orders prior to their execution on any other ground does not amount to the abandonment of the said power or to their denial to the proposed detenu, but prevents their abuse and the perversion of the law in question. 13. From plain reading of aforesaid judgment, it is clear that if there is an alternative remedy the court should impose a self-restraint upon themselves and insist that aggrieved party should exhaust the remedy provided by law before invoking discretionary extraordinary jurisdiction under Article 226 of the Constitution of India. 14. From perusal of detention order, it is clear that same has been passed under section 12(2) of the Jharkhand Control of Crimes Act,2002 because respondent no.2 is satisfied from the report of Superintendent of Police and documents attached therewith that petitioner is an anti-social element and his activity will affect the peace and tranquility of the society. Under the said circumstance, I find that detention order was passed under Jharkhand Control of Crimes Act,2002. It is submitted by learned counsel for the petitioner that grounds for detention relates to law and order problem and has no impact on public order of the society. 15. As per provisions of Jharkhand Control of Crimes Act,2002 an Advisory Board has been constituted consisting of persons who are or have been qualified to be appointed as Judges of the High Courts. Thus, in my view, it is proper for the petitioner to surrender in pursuance to the order of detention and after service of the grounds file a representation against the said detention as per the provisions contained under the Constitution of India and as well as under the Jharkhand Control of Crimes Act,2002. In my view, if such representation filed, it will be scrutinised by the Advisory Board after giving opportunity to the petitioner of personal hearing, and then the Advisory Board will decide whether the detention order has been passed for the purpose mentioned under Jharkhand Control of Crimes Act,2002 or not? 16. Admittedly, detention order passed against the petitioner. Respondent no.2 has authority under the Act to pass such order. However, learned counsel for the petitioner submits that said detention order has been passed for wrong purpose taking into account the extraneous and irrelevant grounds. 16. Admittedly, detention order passed against the petitioner. Respondent no.2 has authority under the Act to pass such order. However, learned counsel for the petitioner submits that said detention order has been passed for wrong purpose taking into account the extraneous and irrelevant grounds. It is submitted that said order has been passed on the behest of respondent no.6 who is a Ward Commissioner and has political rivalry with the petitioner. In this connection, it is worth mentioning that in the entire writ application as well as in the I.A. petition, petitioner has no where stated that he is also member of any political party. There is also no averments in the writ application and/or I.A. petition that petitioner fought election against respondent no.6. It is also nowhere stated that respondent no.6 had any personal grudge against petitioner. It is also nowhere stated that respondent no.6 had pressurized Superintendent of Police and/or Deputy Commissioner, Dhanbad for passing impugned order. Thus, it cannot be said that detention order has been passed for wrong purpose only to please respondent no.6. There is no averments in the writ application as well as in the I.A. petition as to what extraneous matter considered by respondent no.2 for passing impugned order. In that view of the matter, I find no merit in the aforesaid contention raised by learned counsel for the petitioner. 17. In view of discussion made above, I find that case of the petitioner does not come within four corners of the law laid down by their Lordships of Supreme Court in the aforesaid case. Thus, present writ application is not maintainable. As noticed earlier petitioner appears to be absconder and because of that detention order has not been served upon him, hence I find no illegality in the order of cognizance dated 28/04/2012 passed by learned Chief Judicial Magistrate, Dhanbad in C.O. case no.26/2012 and proceeding initiated by him. 18. In the result, I find no merit in this writ application, the same is, accordingly, dismissed.